Obama Calls for Elimination of the Filibuster as a ‘Jim Crow Relic’ - Should the Senate's 60 Vote Threshold Be Abolished?

What’s the story?

• At a funeral service for the late Congressman John Lewis (D-GA), former President Barack Obama called for the elimination of the legislative filibuster, adding high profile support for the use of the “nuclear option” to end the Senate’s 60 vote threshold for legislation if former Vice President Joe Biden wins the White House & Democrats retake the Senate.
• In his eulogy, Obama called the filibuster a “Jim Crow relic” that should be eliminated to allow for the passage of voting rights legislation named after Lewis, making Election Day a national holiday, and statehood for the District of Columbia & Puerto Rico:

“And if all this takes eliminating the filibuster, another Jim Crow relic, in order to secure the God-given rights of every American, then that’s what we should do.”

• Obama’s statement is a reversal from his past support for the Senate’s legislative filibuster (aka the cloture motion), which has historically been used both to block and advance civil rights legislation in the Senate. The Senate’s most recent legislative filibuster was Senate Democrats successfully blocking debate & amendment votes on Sen. Tim Scott’s (R-SC) police reform bill, the JUSTICE Act.

Did Obama support the filibuster?

• During his only term in the Senate, while Democrats were in the minority, then-Sen. Barack Obama (D-IL) explained in 2005 that the legislative filibuster was a necessary tool for providing the American public a rigorous public debate in the halls of Congress:

“What they don’t expect is for one party ― be it Republican or Democrat ― to change the rules in the middle of the game so that they can make all the decisions while the other party is told to sit down and keep quiet. The American people want less partisanship in this town, but everyone in this chamber knows that if the majority chooses to end the filibuster ― if they choose to change the rules and put an end to democratic debate ― then the fighting and the bitterness and the gridlock will only get worse.”

• In his floor speech, then-Sen. Obama also echoed a defense of the filibuster often used by senators from both sides of the aisle who advise against its abolition:

“In the long run, this is not a good result for either party. One day Democrats will be in the majority again, and this rule change will be no fairer to a Republican minority than it is to a Democratic minority.”

• During his time in the Senate, particularly during the 109th Congress (2005-2006) when Democrats were in the minority, Sen. Obama used the legislative filibuster to block several controversial bills that would have passed if a simple majority vote was required.
• On September 29, 2006, Obama voted to filibuster the Child Interstate Abortion Notification Act ― a bill that would’ve made it illegal to minors across state lines for abortions without notifying their parents ― that fell just short of the 60 vote threshold, 57-42. Obama voted to filibuster a bill to repeal the estate tax (aka the “death tax”) on June 8, 2006, which failed 57-41; and also voted to filibuster a bill to provide additional exclusions from the estate tax on August 3, 2006, which failed 56-42. And on December 16, 2005, Obama voted to filibuster the conference report of PATRIOT Act reform legislation, which failed on a 52-47 vote (before passing after further changes were made in March 2006 with Obama in favor).
• By the second term of his time in White House, President Barack Obama called for limits on the routine use of the Senate filibuster because he felt it limited the ability of the majority party to govern.

Would Democrats use the “nuclear option” to eliminate the legislative filibuster?

• A 51 vote majority could vote to change Senate precedent so that the 60 vote threshold for legislation is reduced, and Democrats have openly considered ending the filibuster if they hold a majority in the next Congress with Minority Leader Chuck Schumer (D-NY) saying “nothing’s off the table”.
• Whether a potential Democratic majority pursues the end of the filibuster remains to be seen, but there is reason to believe they may not have enough votes to do so.
• In 2017, a group of 27 Democratic senators (including seven who are up for re-election in 2020) signed a bipartisan letter that called for the preservation of the legislative filibuster. Additionally, a pair of Democratic senators who took office since then ― Sen. Doug Jones (D-AL) and Sen. Kyrsten Sinema (D-AZ) ― are also opposed to the filibuster’s elimination.

What’s the historical connection of the legislative filibuster to civil rights bills or Jim Crow?

• The Senate’s cloture motion, commonly known as the “legislative filibuster”, was first adopted in 1917 as a way to limit further debate on a proceeding through the agreement of a super-majority (at the time, two-thirds of the Senate) and prevent talking filibusters from derailing floor work.
• In 1975, the two-thirds threshold for cloture motions to succeed was lowered to three-fifths of “duly chosen and sworn” senators. This means that 60 votes are required to invoke cloture when the Senate has its full complement of 100 senators, although if there were two vacancies 59 would be required, and so forth.
• The Senate’s cloture motion was first put into use in 1919 to curtail a filibuster of the Treaty of Versailles (the treaty which ended World War I). The use of cloture motions has risen dramatically in recent decades. From its creation in 1917 to 1970, the Senate only voted on 49 cloture motions (eight of which succeeded). From 1971-1974 that spiked to 51 votes on cloture motions (13 of which were invoked), prompting the 1975 cloture reform, but that failed to stem its use. The last three Congresses (2013-2018) combined for a total of 509 votes on cloture motions, with cloture invoked 404 times. 
• The first legislative filibusters of civil rights legislation occurred in January & February of 1938, when anti-lynching bills were blocked 42-46 & 37-51. Anti-poll tax bills fell victim to the legislative filibuster in November 1942 (37-41) & in May 1944 (36-44), while in July 1946 the anti-poll tax bill was filibustered again but attained a majority for the first time, 39-33.
• The first civil rights legislation to be enacted after the Reconstruction era came with President Dwight D. Eisenhower's Civil Rights Act of 1957. While it wasn't subject to filibuster under a cloture motion, then-Sen. Strom Thurmond (D-SC) set the record for longest talking filibuster at 24 hours and 18 minutes before it passed 72-18 with only southern Democrats opposed to the bill.
• Further civil rights bills were filibustered in March 1960 (42-53), May 1962 (43-53 & 42-52), but on June 10, 1964, the Senate successfully invoked cloture & defeated the filibuster of the landmark bill that became known as the Civil Rights Act of 1964 on a 71-29 vote before it was ultimately enacted. The next year, the Voting Rights Act of 1965 defeated the legislative filibuster on a 70-30 cloture vote on its way to becoming law.

— Eric Revell

(Photo Credit: Obama White House - Pete Souza / Public Domain)